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Tuesday, April 25, 2017

 
 
 

 
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Smitiuch Injury Law Wins FSCO Decision: Swerving on a Bicycle to Avoid Vehicle is an “Accident”

Smitiuch Injury Law recently won an arbitration decision, DiMarco and Chubb Insurance Company, at the Financial Services Commission of Ontario (FSCO) regarding what is deemed to be an “accident”.

Marilena DiMarco was riding her bicycle on a training ride for a charitable event when she and her group went through a town that was having a street festival.  Because the street was closed the group rode their bicycles on the sidewalk.  A van was parked half-way on the sidewalk.  When Ms. DiMarco swerved to avoid the van, she lost her balance and fell, hitting the van with her hand in the process.  Chubb Insurance refused to accept the incident as a “motor vehicle accident” as defined in The Insurance Act and Statutory Accident Benefits Schedule (SABS) and refused to pay for badly-needed treatment and other accident benefits.

Arbitrator Deborah Pressman stated the following:

In this case, Ms. DiMarco was compelled to manoeuvre on the sidewalk around a vehicle that was parked in her way.  This automobile set in motion a chain of events directly resulting in Ms. DiMarco’s fall from the bicycle.  There was no intervening act that caused Ms. DiMarco to fall.  There were no other impediments around the automobile or near Ms. DiMarco.  Therefore, there was a direct and proximate cause between the “use or operation” of the automobile and Ms. DiMarco’s injuries.

Peter Cho, an associate lawyer at Smitiuch Injury Law Professional Corporation, represented Ms. DiMarco at the arbitration hearing.  He was assisted by Chris Jackson, Accident Benefits Manager.

The decision can be read by clicking on the attached.  DiMarco and Chubb Insurance Company of Canada FSCO Decision A10-003967

FSCO Arbitrator Recognizes 60-Day Timeline for Mediations

A recent decision by FSCO Arbitrator Jeffrey Rogers supports that a mediation can be deemed to have failed if it has not been mediated within the 60 day timeframe noted in both The Insurance Act as well as The Dispute Resolution Practice Code.

In the decision, Leone and State Farm, Arbitrator Rogers states the following:

Since the prescribed time for mediation had expired when Mr. Leone filed his Application for Arbitration, there was no jurisdictional barrier to his doing so. This conclusion is consistent with the scheme and intent of the Act, the Schedule and the Rules as they aim to promote prompt payment of benefits and speedy dispute resolution. The legislation and the Rules are all replete with fixed time limits intended to serve this purpose. Accepting State Farm’s position would mean that there is no fixed time for completing mediation. That would render meaningless the requirement in the Act and the Rules for the prompt appointment of a mediator.

Section 281.1 of the Act, section 51(1) of the Schedule and Rule 11 of the DRPC require that an Application for Mediation be filed no later than 2 years from the date the insurer provided written notice of refusal to pay an amount claimed. Accepting State Farm’s submission that the Application is not filed until a mediator is appointed would mean that an insured person does not know whether he or she has met this limitation when delivering an Application to the Commission. It would mean that the period differs from application to application and that close to 1 year of the permitted time was consumed by the delay in this case. Conceivably, if delays increase to the point where it takes 2 years to appoint a mediator, an insured person who attempts to file an Application immediately upon denial would see his or her rights extinguished, before the first step in the dispute resolution process has occurred. The Legislature could not have intended that absurd result.

Judge Declares Mediation “Failed” if not Mediated within 60 Days

A decision from the Superior Court of Justice of Ontario was released that declares a mediation by the Financial Services Commission of Ontario (FSCO) failed if it has not been mediated within 60 days of the application being submitted.

In Cornie v. Security National [2012 ONSC 905], which was heard with three other similar cases, Justice J.W. Sloan renders the following decision:

It currently appears that FSCO’s Dispute Resolution Services’ Mediation Unit is functioning without timelines and has been doing so for years.

The SABS [Statutory Accident Benefits] are for the benefit of injured motor vehicle victims and are often required in a timely fashion.

It makes perfect sense that the legislation and the DPRC [Dispute Resolution Practice Code] refer to a 60 day time limit to deal with such disputes.

In contrast to the injured victims, insurance companies are not in a vulnerable position.  While there is nothing to suggest that these insurance companies are in any way responsible for the delay in mediation, there is no evidence that the delay in mediation is of any real consequence to them.

Justice Sloan found the insurance companies’ postion that accident victims must simply wait to be “preposterous” and suggests that FSCO can continue to try to comply with the 60 day period or seek a change and/or ask for some legislative direction to extend the 60 day period in appropriate circumstances.

It remains to be seen if this motion decision will be appealed.

Toronto Star Article on Lengthy Wait Times at FSCO

The Toronto Star has published an article identifying the lengthy wait times at the Financial Services Commission of Ontario (FSCO) for mediations of accident benefits denied by insurance companies.

Our firm’s own Michael Smitiuch was interviewed and quoted in the article.  He identifies the significant hardship that these delays often mean for clients and notes this to be an access to justice issue.

To read the Toronto Star Article, click here.

FSCO Releases Cost of Goods Guidelines

The Financial Services Commission of Ontario (FSCO) has released guidelines on the costs of goods.  The Guideline was developed as a result of a recommendation by the Auto Insurance Anti-fraud Task Force in its interim report regarding measures that should be undertaken as soon as possible.

Pertinent sections are quoted below:

“For the purposes of this Guideline, the retail price is the lowest price, including delivery charges (if delivery is required), duties and taxes, that would be payable by or on behalf of an insured person to acquire an item of goods from a source that is available to a member of the general public in Ontario.

Where a retail price exists for an item of goods, a “reasonable” expense for that item for the purposes of sections 15 and 16 of the new SABS and sections 14 and 15 of the old SABS is that retail price, or the price actually paid or payable by or on behalf of the insured person to acquire the item, whichever is lower.

In the event of a dispute over whether an expense for an item is “reasonable”, the onus is on the insurer to provide reasonable evidence of the retail price of the item.

Reasonable evidence includes, but is not limited to: an advertisement; written confirmation from a vendor; or any other reliable form of proof of the retail price.”

The Guidelines can be read in their entirety by clicking here.

 

 

The Toronto Sun explores the human side of the “catastrophic” debate

A story written in the Toronto Sun looks at the current debate over the definition of catastrophic impairment and details the ongoing battles of Robert Kusnierz, whos recent Ontario Court of Appeal win supported the combining of physical and psychological impairments for determining a whole body impairment.

You can read the article in full by clicking here.

CBC Toronto Exposes Increase in Auto Insurance Treatment Denials

The Canadian Broadcasting Corporation (CBC) in Toronto recently aired an expose on the increase in denials for medical and rehabilitation treatment by Ontario’s no-fault automobile insurers and the significant delay in obtaining justice for unreasonable denials.

To read the article and watch the archived video, click here.

Ontario Court of Appeal: Desbiens Stands

The Ontario Court of Appeal has reversed the decision of Kusnierz v. Economcial Insurance.

In the Kusnierz v. Economical Insurance decision, Justice Lauwers had determined that it was not permissible to assign percentage ratings in respect of psychological impairments under 2 (1.1)(g) of the Statutory Accident Benefits Schedule (SABS) and combine them with percentage ratings in respect of Kusnierz’s physical impairments under Clause 2(1.1)(f) of the SABS for the purposes of determining whether an individual was catastrophically impaired.

Justice Lawers reviewed the earlier decision of Justice Spiegel in Desbiens v. Mordini but respectfully came to a different conclusion.  Justice Lauwers did not review any of the FSCO decisions on the issue.

This means that both physical and psychological impairment percentage ratings can be combined when determining a catastrophic impairment.

Toronto Star: Fight fraud, but not at the expense of legitimate claimants

The Toronto Star has published an article about the need to find balance between fighting fradulent accident benefits claims and providing necessary goods and services for legitimaely injured clients.

You can read this article by clicking here.

Ontario’s Auditor General Calls for Changes in Auto Insurance Sector

Ontario’s Auditor General released their annual report.  Included in their findings was a question regarding why auto insurers are allowed a 12 percent rate of return when the economy has been so slow.  It also calls on the Financial Services Commission of Ontario to put more resources into elminating the backlog of mediations and arbitrations.

You can read the entire report by clicking here.

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